[Cite as Middleton v. Erie Ins., 2022-Ohio-2486.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Martiquea Middleton, :

Plaintiff-Appellant, :

No. 21AP-15

v. : (M.C. No. 2020 CVI 028585)

Erie Insurance, : (REGULAR CALENDAR)

Defendant-Appellee. :

D E C I S I O N

Rendered on July, 19, 2022

On brief: Martiquea Middleton, pro se.

On brief: Cabron & Butauski Co. LPA, and Alyssa A. Wolf, for 

appellee. Argued: Alyssa A. Wolf.

APPEAL from the Franklin County Municipal Court,

Small Claims Division

MENTEL, J.

{¶ 1} Plaintiff-appellant, Martiquea Middleton, appeals from the judgment of the 

Franklin County Municipal Court dismissing her personal injury case against defendantappellee, Erie Insurance. For the reasons that follow, we affirm the judgment of the 

Municipal Court.

{¶ 2} On November 4, 2020, Ms. Middleton filed a complaint against Erie 

Insurance in the Small Claims Division of the Franklin County Municipal Court. She 

alleged that on May 10, 2016, she was "rear-ended in a vehicle crash" by a driver whose 

policy with Erie Insurance had a $500,000 limit. (Nov. 4, 2020 Compl. at 1.) 

Ms. Middleton claimed that she "sustained severe injuries to [her] neck and back,"

including a "fracture in her neck" and a "disc bulge," and that Erie Insurance's refusal to 

pay her medical bills negatively impacted her credit report. Id. The insurer did offer to 
No. 21AP-15 2

settle with Ms. Middleton for $4,696.23, she alleged, including $500 for pain and suffering, 

and its settlement offer advised her that the statute of limitations for her claim expired on 

May 10, 2018. Id. Ms. Middleton also alleged that a city bus struck her car on March 3, 

2018, and that she was in a fire while working at Safelight, a company she described as "a 

client of Erie Insurance." Id at 2. Ms. Middleton alleged that she had a "disability" and that 

the "disputed matter[s]" between herself and Erie Insurance involved "the extent of the 

injury and the pain and suffering amount," as well as whether the two-year statute of 

limitations applied to her claims. Id at 2. 

{¶ 3} The small claims court magistrate held a hearing to try the case on 

December 16, 2020, at which Erie Insurance moved to have the suit dismissed. In a 

decision signed the same day and filed on December 18, 2020, the magistrate granted the 

motion on the grounds that the case was filed outside the statute of limitations and that 

Ms. Middleton had failed to "sue the insured" and had sued "only the insurance company." 

The trial court adopted the magistrate's decision and entered judgment on December 18, 

2020.

{¶ 4} Ms. Middleton filed a motion for a new trial on December 18, 2020. She filed 

a notice of appeal on January 6, 2021, and asserts the following assignments of error:

[1.] THE TRIAL COURT ERRED WHEN THE APPELLANT 

ASSERTED IN THE COMPLAINT SHE WAS UNDER A 

DISABILITY DUE TO THE MOTOR VEHICLE CRASH AND 

WAS OF AN UNSOUND MIND WHICH IS WHY SHE FILED 

IN THE SMALL CLAIMS DIVISION.

[2.] THE TRIAL COURT ERRED WHEN IT IGNORED THE 

VICTIMS RIGHTS ACCORDING TO CHAPTER 2930 OF THE 

OHIO REVISED CODE.

[3.] THE TRIAL COURT ERRED AND ABUSED ITS 

DISCRETION WHEN IT RULED ON A STATUTE OF 

LIMITATIONS.

[4.] THE TRIAL COURT ERRED WHERE THE DEFENDANT 

FAILED TO RAISE THE OBJECTION THAT AN ALLEGED 

CAUSE OF ACTION WAS NOT BROUGHT WITHIN THE 

TIME LIMITED FOR THE COMMENCEMENT OF SUCH 

ACTION, BY A DEMURRER OR BY AN ANSWER OR BY 

MOTION. THEREFORE SUCH DEFENDANT WAIVES THAT 

GROUND OF OBJECTION.
No. 21AP-15 3

{¶ 5} A trial court's dismissal of a complaint for failure to state a claim upon which 

relief may be granted under Civ.R. 12(B)(6) is usually subject to de novo review. LGR 

Realty, Inc. v. Frank & London Ins. Agency, 152 Ohio St.3d 517, 2018-Ohio-334, ¶ 10. 

However, Ms. Middleton filed no objections to the magistrate's decision challenging its 

conclusions of law about the statute of limitations or her failure to sue the proper party. 

The magistrate's decision expressly warned that a failure to object under Civ.R. 53(D)(3)

would affect this court's ability to review those conclusions, as it stated: "A party shall not 

assign as error on appeal the court's adoption of any finding of fact or conclusion of law 

contained in this decision unless the party timely and specifically objects to that finding or 

conclusion." (Dec. 18, 2020 Mag.'s Decision.) See also Civ.R. 53(D)(3)(b)(iv). 

Furthermore, Ms. Middleton's motion for a new trial did not remedy the failure to file 

objections because "the filing of a motion for new trial, pursuant to Civ.R. 59, is not a 

substitute for the filing of objection(s) pursuant to Civ.R. 53." Hamilton v. Hamilton, 10th 

Dist. No. 14AP-1061, 2016-Ohio-5900, ¶ 5. Because no objections to the magistrate's 

decision were filed, appellate review of the dismissal of Ms. Middleton's lawsuit is limited 

to plain error. Civ.R. 53(D)(3)(b)(iv).

{¶ 6} Plain error review is "strictly" limited "to those extremely rare cases where 

exceptional circumstances require its application to prevent a manifest miscarriage of 

justice, and where the error complained of, if left uncorrected, would have a material 

adverse effect on the character of, and public confidence in, judicial proceedings." Goldfuss 

v. Davidson, 79 Ohio St.3d 116, 121 (1997). Thus, "the plain error doctrine is not favored 

and may be applied only in the extremely rare case involving exceptional circumstances 

where error, to which no objection was made at the trial court, seriously affects the basic 

fairness, integrity, or public reputation of the judicial process, thereby challenging the 

legitimacy of the underlying judicial process itself." Id. at 122-23.

{¶ 7} Our review is further constrained by Ms. Middleton's failure to file a 

transcript of the hearing before the magistrate. Under App.R. 9(B), "it is the obligation of 

the appellant to ensure that the proceedings the appellant considers necessary for inclusion 

in the record, however those proceedings were recorded, are transcribed" for appellate 

review. See also App.R.9(B)(3) (mandating that an "appellant shall order the transcript in 

writing and shall file a copy of the transcript order with the clerk of the trial court"). "When 
No. 21AP-15 4

portions of the transcript necessary for resolution of assigned errors are omitted from the 

record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, 

the court has no choice but to presume the validity of the lower court's proceedings, and 

affirm." Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980). Without a 

transcript, "we cannot review any of appellant's assignments of error that rely upon factual 

issues in dispute, and we must presume regularity of the proceedings under such 

circumstances." Gomez v. Kiner, 10th Dist. No. 11AP-767, 2012-Ohio-1019, ¶ 5. Thus, "we 

may only address arguments in appellant's assignments of error that are based solely on 

questions of law." Id.

{¶ 8} In the first assignment of error, Ms. Middleton argues that the trial court 

erred by applying the two-year statute of limitations for "an action for bodily injury" under 

R.C. 2305.10 instead of tolling the limitations period under R.C. 2305.16. (Brief of 

Appellant at 3-7.) The latter statute tolls the limitations period if a person "is, at the time 

the cause of action accrues, * * * of unsound mind," and permits the person to file the action 

"after the disability is removed." Ms. Middleton argues that "[d]ue to the injuries"

described in her complaint, "she was under a disability" that should have tolled the statute 

of limitations. (Brief of Appellant at 6.) To support this argument, she cites to a number of 

unauthenticated medical records and probate records of an involuntary commitment 

attached to a brief she filed in the trial court in support of her motion for a new trial. Id. 

{¶ 9} As alleged in the complaint, the accident that gave rise to Ms. Middleton's 

complaint occurred on May 10, 2016. (Nov. 4, 2020 Compl. at ¶ 1.) Her cause of action 

accrued on that date. R.C. 2305.10(A) (stating that "a cause of action [for bodily injury]

accrues * * * when the injury or loss to person or property occurs"); Combs v. Spence, 5th 

Dist. No. 2006CA0034, 2007-Ohio-2210, ¶ 19 (applying R.C. 2305.10(A) and stating that 

"[p]ersonal injury claims arising from a motor vehicle accident accrue on the day of 

accident, and the statute of limitations for such claims expires on the two-year anniversary 

date of the incident"). Her complaint, filed nearly four and one-half years later, was 

properly analyzed by the trial court as having been filed well outside the limitations period. 

Thus, the trial court's conclusion that Ms. Middleton's claim was time-barred was not 

erroneous. 
No. 21AP-15 5

{¶ 10} Nor did the trial court plainly err by failing to apply the tolling provision 

under R.C. 2305.16 to Ms. Middleton's claim. A "plaintiff bears the burden of presenting 

evidence substantiating a claim that R.C. 2305.16 tolls the time in which the plaintiff was 

required to bring her claims against a defendant." Boyd v. Elsamaloty, 10th Dist. No. 15AP533, 2015-Ohio-5578, ¶ 17. Ms. Middleton's failure to provide a transcript of the proceeding 

requires us "to presume the validity of the lower court's proceedings," so we must presume 

that the trial court correctly determined that Ms. Middleton failed to prove that the tolling 

provision applied. Knapp at ¶ 199. 

{¶ 11} We note that Ms. Middleton filed the brief with the probate records of her 

involuntary commitment after the trial court had entered judgment dismissing her case, so 

it is not apparent that the magistrate ever saw the records. However, even if she had 

presented the records to the magistrate, they did not demonstrate that she was entitled to 

have the statute of limitations tolled under R.C. 2305.16. The statute requires that "at the 

time the cause of action accrues * * * the party be of unsound mind" for the limitations 

period to toll. Ms. Middleton's probate records include an affidavit from a treating 

physician and an order of commitment both dated March 27, 2019, nearly three years after 

the cause of action accrued. Because R.C. 2305.16 requires a person to be "of unsound 

mind" on the date that "the cause of action accrues," the probate records would not have 

demonstrated that she was entitled to have the statute of limitations period tolled. There 

is no indication of error in the record, plain or otherwise, concerning the trial court's ruling 

that the two-year statute of limitations period under R.C. 2305.10(A) barred 

Ms. Middleton's claim. Accordingly, the first assignment of error is overruled.

{¶ 12} In the second assignment of error, Ms. Middleton argues that the trial court 

erred by failing to apply Ohio’s Victim’s Rights statute. She specifically points to that 

statute’s definition of a crime covered by the statute and believes it applies to the motor

vehicle accident she was involved in. (Brief of Appellant at 8.) The statute provides that 

one definition of "crime" includes:

A motor vehicle accident to which both of the following apply:

(a) The motor vehicle accident is caused by a violation of a 

provision of the Revised Code that is a misdemeanor of the first 

degree or higher.
No. 21AP-15 6

(b) As a result of the motor vehicle accident, the victim receives 

injuries for which the victim receives medical treatment either 

at the scene of the accident by emergency medical services 

personnel or at a hospital, ambulatory care facility, physician’s 

office, specialist’s office, or other medical care facility.

R.C. 2930.01(A).

{¶ 13} The Ohio Victim's Rights statute provides crime victims with a number of 

rights applicable in criminal proceedings, such as the right to be notified of charges against 

a criminal defendant, the right to confer with prosecution, and the right to be present at 

proceedings. See R.C. 2930.01 et seq. "Under R.C. 2930.01's express terms, the definitions 

in the victim's rights chapter are limited to that chapter," and Ms. Middleton has not 

explained how the definition she cites is relevant in her civil personal injury case. State v. 

Allen, 159 Ohio St.3d 75, 2019-Ohio-4757, ¶ 13 (holding that R.C. 2930.01 definition of 

"victim" does not apply in restitution proceeding under R.C. 2929.18). The trial court did 

not err when it did not apply the Victim's Rights statute in Ms. Middleton's personal injury 

claim. The second assignment of error is overruled.

{¶ 14} We consider Ms. Middleton’s final two assignments of error together. In 

support of the third assignment of error, Ms. Middleton asserts that because Erie Insurance 

"never filed any motions orally or in writing," it was error for the trial court to dismiss her 

case. (Brief of Appellant at 10.) According to her, "no proper motions were filed to dismiss 

the action." Id. In support of the fourth assignment of error, she argues that Erie Insurance 

waived its statute of limitations defense by failing to assert it in a responsive pleading, citing 

Civ.R. 12(B). Id. at 12.

{¶ 15} Procedure in small claims court is governed by Chapter 1925 of the Ohio 

Revised Code. See R.C. 1925.01 et seq. The Ohio Rules of Civil Procedure only apply in 

small claims proceedings to the extent that they do not conflict with the provisions of 

Chapter 1925. R.C. 1925.15 (allowing for applicability of Ohio Civil Rules in small claims 

proceedings "[e]xcept as inconsistent procedures are provided in this chapter or in rules of 

court adopted in furtherance of the purposes of this chapter"). The Ohio Civil Rules also 

state that they "shall not apply * * * in small claims matters." Civ.R. 1(C). See also id., Staff 

Notes ("The small claims action does not contemplate the use of a formal complaint 

prepared by a lawyer or an answer or elaborate discovery procedures" so that "two citizens 
No. 21AP-15 7

[may] argue their differences informally before a referee."). Under Local Rule 11.01 of the 

Franklin County Municipal Court, which governs small claims practice there, "[a]nswers

and other responsive pleadings are permitted but not required unless specifically ordered 

by a judge or a magistrate." Thus, Erie Insurance was not required to file an answer or to

assert an affirmative defense before the hearing. It is clear from the language of the 

magistrate’s decision that Erie Insurance orally moved to dismiss the case at the hearing

because it stated that the motion was "granted." (Dec. 18, 2020 Mag.’s Decision.) And, 

once again, without a transcript of that proceeding to indicate otherwise, we presume the 

regularity of what transpired there. The third and fourth assignments of error are 

overruled.

{¶ 16} Having overruled appellant's four assignments of error, we affirm the 

judgment of the Franklin County Municipal Court.

Judgment affirmed. 

SADLER and JAMISON JJ., concur.

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